Election season is not the only time state courts find themselves at the center of political storms. In 2013-14, politicians in several states took aim at judges through means other than the ballot box. Instead, their tools included impeachment threats and bills to limit courts’ authority.

A Governor and State Legislator Target Court in Death Penalty Case

In Oklahoma in 2014, political pressure on the state Supreme Court played out against the tragic backdrop of a botched execution. Inmate Clayton Lockett was scheduled to be the first person in Oklahoma executed using a new—and controversial—lethal injection drug. Lockett had challenged a state law that protects the identity of companies that supply lethal injection drugs. 1 The Oklahoma Supreme Court intervened days before the scheduled execution, stating that it would stay Lockett’s execution until it could sufficiently resolve the secrecy matter. A political firestorm ensued.

The next day, Governor Mary Fallin declared that the high court had overstepped its bounds, and issued an executive order directing officials to carry out the execution. The same day Fallin’s order was filed, a state representative threatened the justices with impeachment. The next day, under immense political pressure, the court summarily resolved the secrecy issue in the state’s favor, lifted the stay, and allowed the execution to proceed on schedule, 2 with horrific results. Lockett was seen to writhe on the gurney, in apparent agony, for nearly an hour. Instead of dying painlessly while unconscious, Lockett had died of a heart attack. 3

Politicians Call to Impeach Judges in Response to Marriage Equality Decisions

While it was a death penalty case that spurred challenges to the authority of Oklahoma’s high court, there is perhaps no issue in 2013-14 that generated more political efforts to pressure the courts than marriage equality. In 2013, Iowa legislators introduced a bill aimed at barring marriage licenses for same-sex couples and prohibiting the Iowa Supreme Court from reviewing the ban. 4 Later that year, the U.S. Supreme Court handed down U.S. v. Windsor, 5 striking down a portion of the Defense of Marriage Act and fueling speculation that the Court might in time affirm a national right to marriage equality. Throughout 2013 and 2014, marriage equality gained momentum as a series of state bans on marriage for same-sex couples were struck down by state and federal courts. At the same time, politicians targeted some of these same courts and judges for their decisions.

In 2014, Arkansas politicians, along with the National Organization for Marriage, called publicly for the impeachment of a state judge who struck down a ban on marriage for same-sex couples, 6 while partisan groups and politicians in Pennsylvania 7 and Virginia 8 called for the impeachment of federal judges who had struck down such bans.

In late 2014, legislators in South Carolina went one step further and introduced a bill that would deny pay to any judge or government official who recognized, granted, or enforced a same-sex marriage license. 9 It set the stage for a flurry of bills the following year, as legislators in Texas, Oklahoma, and Iowa proposed similar legislation soon thereafter: Oklahoma legislators launched an initiative to remove judges who recognized same-sex marriages from office, 10 Texas legislators introduced an order directing state judges to continue to ban same-sex marriage regardless of how the U.S. Supreme Court ultimately ruled, 11 and Iowa legislators sought to block court registrars from issuing marriage licenses to same-sex couples until a constitutional amendment could be submitted to Iowa voters. 12 Each of these bills attempted to immunize their directives from subsequent judicial scrutiny.

Then, in February 2015, Roy Moore, the Chief Justice of the Alabama Supreme Court, directed the state’s 67 counties to ignore a federal court ruling requiring the issuance of marriage licenses to same-sex couples. 13 Shortly thereafter, the high court issued a ruling finding that Alabama judges have a duty to obey state law—which allowed for “marriage” between one man and one woman—and noting, “[n]othing in the United States Constitution alters or overrides this duty.” 14

Between 2013 and 2014, there had also been repeated calls 15 for the impeachment of Judge Timothy Black, a federal judge in Ohio who issued a decision recognizing the out-of-state marriage of James Obergefell. In addition, lawmakers in Idaho passed a resolution to impeach any federal judge who ruled for marriage equality. 16 The Obergefell case ultimately made its way to the U.S. Supreme Court, resulting in the court’s landmark 2015 ruling that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed out-of-state. 17

Ultimately, none of the impeachment threats came to fruition—and in fact, many were made by parties with no legal authority to even carry them out. Likewise, efforts to pressure state courts through legislation all faltered. But the hostility to judges who upheld the right to marry—and the accompanying political pressure on judges hearing such cases—was clear.

Notes:

  1. Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett, The Atlantic (June 2015), http://www.theatlantic.com/magazine/archive/2015/06/execution-clayton-lockett/392069/.
  2. Id.
  3. Josh Levs, Ed Payne, and Greg Botelho, Oklahoma’s Botched Lethal Injection Marks New Front in Battle Over Executions, CNN (Sept. 8, 2014, 7:16 AM), http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution/index.html.
  4. H.F. 444, 2013 Leg., 85th Gen. Assemb., Reg. Sess. (Iowa 2013), available at http://coolice.legis.iowa.gov/Cool-ICE/default.asp?Category=billinfo&Service=Billbook&menu=false&hbill=hf444&ga=85.
  5. United States v. Windsor, 133 S. Ct. 2675 (2013) (holding that Section 3 of the Defense of Marriage Act – which defined marriage as the union of one man and one woman – is unconstitutional under the Due Process Clause of the Fifth Amendment to the U.S. Constitution).
  6. See Brian Brown, Impeach Arkansas Judge Who Betrayed Marriage!, Nom Blog (May 14, 2014, 2:38 PM), http://www.nomblog.com/39138/.
  7. See Religious Right Leaders Call For Impeaching Judge After Pa. Marriage Ruling, Americans United for Separation of Church & State (July/August 2014), https://www.au.org/church-state/julyaugust-2014-church-state/people-events/religious-right-leaders-call-for-impeaching.
  8. See Robert Barnes & David A. Farenthold, Who’s the Judge in VA. Gay-Marriage Ban Case? A Seeker of a ‘More Perfect’ Freedom., The Washington Post (Feb. 14, 2014), http://www.washingtonpost.com/politics/whos-the-judge-in-va-gay-marriage-ban-case-a-seeker-of-a-more-perfect-freedom/2014/02/14/a5634b0c-95b6-11e3-afce-3e7c922ef31e_story.html.
  9. H. 3022, 2015 Leg., 121st Sess., Reg. Sess. (S.C. 2015), available at http://www.scstatehouse.gov/billsearch.php?billnumbers=3022&session=121&summary=B&headerfooter=1.
  10. H.B. 1599, 55th Leg., 1st Sess. (Okla. 2015), available at http://www.oklegislature.gov/BillInfo.aspx?Bill=HB1599&Session=1500.
  11. H.B. 623, 84th Leg., Reg. Sess. (Tex. 2015), available at http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=84R&Bill=HB623.
  12. H.F. 101, 2015 Leg., 86th Gen. Assemb., Reg. Sess. (Iowa 2015), available at http://coolice.legis.iowa.gov/Cool-ICE/default.asp?Category=billinfo&Service=Billbook&menu=true&ga=86&hbill=HF101.
  13. View the order at http://media.al.com/news_impact/other/CJ%20Moore%20Order%20to%20Ala.%20Probate%20Judges.pdf (last visited Aug. 12, 2015).
  14. In re Alan L. King, No. 1140460, 2015 WL 892752 (Ala. Mar. 3, 2015), available at https://acis.alabama.gov/displaydocs.cfm?no=642402&event=4AN12324A.
  15. Sunnivie Brydum, Impeach Judge Who Ordered Ohio to Recognize Gay Marriages, Says Local Lawmaker, Advocate.com (Sept. 23, 2013), http://www.advocate.com/politics/marriage-equality/2013/09/23/impeach-judge-who-ordered-ohio-recognize-gay-marriages-says; Jackie Borchardt, Ohio Rep. John Becker Repeats Call for Impeachment of Judge Timothy Black Over Gay Marriage Ruling, Cleveland.com (Apr. 7, 2014, 11:45 AM), http://www.cleveland.com/open/index.ssf/2014/04/ohio_rep_john_becker_repeats_c.html.
  16. H.J.M. 4, 63rd Leg., First Reg. Sess. (Idaho 2015), available at http://www.legislature.idaho.gov/legislation/2015/HJM004.pdf. See also Phil Bridges, A Quick Civics Lesson for Idaho Legislators, Idaho Press-Tribune (Apr. 9, 2015), http://www.idahopress.com/members/a-quick-civics-lesson-for-idaho-legislators/article_258a5f06-de49-11e4-92e3-03e613a84dac.html.
  17. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).